Marian Hollywood, Plaintiff-appellant, v. City of Santa Maria; Dorothy Lyman; Michael A. Maramonte;wayne Schwammel, Defendants-appellees. (two Cases), 886 F.2d 1228 (9th Cir. 1989)

The question we must decide in this case is whether either of plaintiff-appellant's two notices of appeal is timely. Plaintiff-appellant, by her then counsel, filed her first notice of appeal after judgment was entered but before entry of the order denying her motion for new trial. Several months after entry of the order, she replaced her former attorney with a new attorney, who filed a second notice on her behalf. The second notice, however, was filed over a year after entry of the order denying her new trial motion. As a result, appellees have moved to dismiss both appeals.

This is the most recent in a series of cases in which we have discussed the provisions of Fed. R. App. P. 4(a) regarding entry of judgment as these provisions apply to cases where a party has made a timely post-judgment motion under Fed. R. Civ. P. 59. See Allah v. Superior Court, 871 F.2d 887 (9th Cir. 1989); Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751 (9th Cir. 1986), cert. denied, 479 U.S. 825, 107 S. Ct. 100, 93 L. Ed. 2d 51 (1986); Calhoun v. United States, 647 F.2d 6 (9th Cir. 1981). We consider this case against the backdrop of two Supreme Court decisions: Acosta v. Louisiana Dept. of Health and Human Resources, 478 U.S. 251, 254, 106 S. Ct. 2876, 2877, 92 L. Ed. 2d 192 (1986) (per curiam), which disapproved a portion of our holding in Calhoun and held that a notice of appeal filed after the oral announcement of a denial of a Rule 59 motion and before entry of a written order is without effect, and Bankers Trust Co. v. Mallis, 435 U.S. 381, 388, 98 S. Ct. 1117, 1121, 55 L. Ed. 2d 357 (1978) (per curiam), which held that, although separate entry of judgment pursuant to Fed. R. Civ. P. 58 is necessary to start a party's appeal time running, it is not a prerequisite to appellate jurisdiction. Our analysis of the requirements of Fed. R. App. P. 4(a) in conjunction with Fed. R. Civ. P. Rules 58 and 70 which require us to dismiss both of these appeals as untimely.

Appellant filed the underlying sex discrimination and retaliation action against appellees in district court on March 19, 1984. She initially prevailed at trial on her retaliation claim, but the district court ordered the matter retried. In the second trial, the jury found for the appellees, and judgment was entered against appellant on June 29, 1987.¹ 

On July 9, 1987, appellant timely served and filed a motion for new trial under Fed. R. Civ. P. 59. The district court denied the motion orally from the bench on September 28, 1987, and on October 5, 1987, appellant filed her first notice of appeal (No. 87-6455).

It was not until March 2, 1988, however, that the district court filed a written order denying appellant's motion for a new trial. The order is titled, "Order Denying Plaintiff's New Trial Motion." It is nine pages in length, explains the legal and factual basis for the court's decision, and is signed by the district judge. The first page of the order indicates that it was entered on March 3, 1988, and is stamped, "This constitutes notice of entry as required by FRCP, Rule 77(d)." The order concludes with the statements, "THEREFORE, Plaintiff's motion for a new trial is DENIED. IT IS SO ORDERED." The order was entered in the docket with the following notation: "321 ORD. pltf's mot for a new trial is DENIED. Mld N/E stmpd copys to all ptys. (ENT 3/3/88)."

Appellant did not file a new notice of appeal within 30 days of the date of this order. Subsequently, she obtained new counsel, who on March 22, 1989, filed a second notice of appeal on her behalf (No. 89-55350).

Appellees argue that the first notice of appeal was premature and hence ineffective because it was filed before entry in the district court docket of the written disposition of the motion for new trial. We agree and find that appeal No. 87-6455 must be dismissed for lack of jurisdiction. See Fed. R. App. P. 4(a) (4); Acosta, 478 U.S. at 254, 106 S. Ct. at 2877; Lewis v. United States Postal Serv., 840 F.2d 712, 714 (9th Cir. 1988) (per curiam).

Appellant's second notice of appeal, however, presents a question requiring more discussion. Fed. R. App. P. 4(a) (4) provides that when a timely post-judgment motion under Fed. R. Civ. P. 59 is made in the district court, the notice of appeal must be filed within 30 days of entry of the order disposing of the motion.²  See Beaudry Motor Co., 780 F.2d at 753-54. Timeliness requirements are jurisdictional. Id. In order to be effective to trigger the time to appeal, an order denying a motion for new trial must be entered in compliance with Fed. R. Civ. P. 58. See Fed. R. App. P. 4(a) (6).³  Fed. R. Civ. P. 58 specifies that every judgment "shall be set forth on a separate document."⁴  Fed. R. App. P. 58 and 4(a) (6) require that a judgment, to be effective, must be entered in compliance with Fed. R. Civ. P. 79(a).⁵ 

Appellees argue that because appellant did not file this notice of appeal for more than a year after the order denying the motion for new trial was entered on the docket, the appeal is untimely. In response, appellant asserts that the time to appeal was never triggered because the district court's order denying her Rule 59 motion also contains an explanation of the reasons for the denial. As a result, she contends that the order did not constitute a "separate document" as required by Rule 58.

We do not quarrel with appellant's threshold proposition that the separate entry requirement of Rule 58 applies to orders denying Rule 59 motions. See Fed. R. App. P. 4(a) (6); Beaudry Motor Co., 780 F.2d at 754. Appellant, however, goes on to argue that under Rule 58 the district court should have filed, in addition to its 9-page order, a separate, one sentence order stating that the motion was denied. She argues that only upon entry of such a second document on the docket sheet would the time for appeal have begun to run. On this basis, she asks us to hold that the period within which she had to file her appeal never began to run, and, accordingly, that the appeal was timely. She makes this argument despite the fact that the order denying her motion for new trial was labeled as an order denying the motion for new trial, was entered on the Clerk's docket as an order denying the motion for new trial, and was properly served with service duly noted on the docket sheet. With this reasoning we disagree.

To support her view, the appellant relies upon the Advisory Committee Note to the 1963 amendments to Rule 58, which states that in order for entry to be effective there must be a judgment "distinct from any opinion or memorandum--which provides the basis for the entry of judgment." In accordance with this language, we have held with respect to a final judgment, that the separate entry rule requires entry of a document distinct from any opinion or memorandum.⁶  See Allah, 871 F.2d at 890; Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987). Neither precedent nor logic, however, compels us to extend this judgment rule to orders denying Rule 59 motions. We decline to hold that entry of such an order is ineffective to trigger the time for filing a notice of appeal simply because the order contains explanatory material.

The full history of Rule 58's separate entry requirement shows that it was intended to create greater certainty in establishing the time for which an appeal from a final judgment should lie. The rule was amended to include the separate entry requirement in order to end the problems arising when a court first entered an opinion with directive language that appeared to dispose of an entire case, but was not labeled a judgment, and later entered a formal judgment. The separate entry requirement was intended to add clarity to the time requirement, not confusion.⁷ 

The Supreme Court explained how the amendment resolved the problem in United States v. Indrelunas, 411 U.S. 216, 93 S. Ct. 1562, 36 L. Ed. 2d 202 (1973) (per curiam). In that case the jury returned a verdict for plaintiffs, but failed to set the exact amount of the damages. The verdict was entered on the docket. Subsequently, the parties filed a stipulation with the district court establishing the allocation of damages pursuant to the jury verdict. No formal judgment was entered until some time later. In those circumstances, the Supreme Court held that, in light of the 1963 amendment to Rule 58, it was the entry of the formal judgment and not entry of the earlier verdict that triggered the time for appeal. Indrelunas, 411 U.S. at 221, 93 S. Ct. at 1564.

In the context of final judgments, the requirement that the dispositive document be distinct from any opinion serves to eliminate confusion as to which order ends the litigation. See Bankers Trust Co., 435 U.S. at 384, 98 S. Ct. at 1119 ("sole purpose of the separate-document requirement ... [is] to clarify when the time for appeal ... begins to run"). No comparable risk of confusion exists with respect to an order denying a motion for new trial where the order is properly entered on the docket sheet.

In this case, as is generally the case in the Rule 59 context, the order denying the motion for new trial definitively signaled the end of the litigation.⁸  See Beaudry Motor Co., 780 F.2d at 755 (Rule 58 separate document requirement satisfied when order denying Rule 59 motion clearly put counsel on notice that motion was denied). The order in this case was entered on the docket as an order denying the motion in compliance with Rule 79(a) and it was properly served on the parties in compliance with Rule 77(d). Accordingly, the "entry" complied with all of the requirements of the Federal Rules of Civil Procedure and it was not necessary for the district court to file and enter a second document. Rather, appellant's time to appeal ran from the date of entry of the order denying the motion for new trial on the docket.⁹ The second notice of appeal, filed over a year later, was untimely.

Appellant asserts that even if both her notices of appeal were untimely filed, this court still has jurisdiction to consider her appeal. She argues that her motion to this court for a stay pending appeal, which was filed within 30 days of entry of the order denying the motion for new trial, should be construed as a timely notice of appeal. In some cases we have applied a lenient standard to documents not denominated as notices of appeal. Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978) (two-judge panel). Appellant's argument that we should apply this standard in this case, however, is effectively foreclosed by our recent decision in Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 387-88 (9th Cir. 1988). In Munden we held that the more lenient standard does not apply to cases in which a party is represented by an attorney, absent extraordinary circumstances. We said:

However, when employing this more lenient standard, we have generally been faced with an appellant not represented by counsel, a situation where life or liberty is at stake, or "when the interests of substantive justice require it [ ] to disregard irregularities in the form or procedure for filing a notice of appeal." We will not extend any leniency that is not demanded by these cases to one where the party is represented by an attorney. Moreover, " [a] liberal construction of Rule (3) (a) cannot be allowed to nullify the plain provision of rule 4(a) (4) that a premature notice of appeal 'shall have no effect.' "

849 F.2d at 387-88 (citations omitted).

Appellant here was represented by counsel throughout these proceedings and, although we sympathize, we cannot characterize her case as extraordinary. Accordingly, we refuse to construe the motion for a stay as an effective notice of appeal.

The appeals are DISMISSED.